General Services Administration (Respondent) and American Federation of Government Employees, AFL-CIO (Charging Party)
[ v06 p430 ]
06:0430(77)CA
The decision of the Authority follows:
6 FLRA No. 77
GENERAL SERVICES ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-762
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
SUBMITTED BY THE RESPONDENT GENERAL SERVICES ADMINISTRATION (GSA), THE
CHARGING PARTY (AFGE), AND THE GENERAL COUNSEL, THE AUTHORITY FINDS: AS
A RESULT OF THE CONTEMPLATED ESTABLISHMENT OF A GOVERNMENT-WIDE PAID
PARKING PROGRAM FOR ALL EMPLOYEES OF THE FEDERAL GOVERNMENT, GSA ISSUED
THREE INTRA-AGENCY MEMORANDA. THESE MEMORANDA FORM THE BASIS OF THE
COMPLAINT IN THIS CASE WHICH ALLEGES THAT GSA VIOLATED SECTION
7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE) /1/ BY INSTITUTING SUBSTANTIVE CHANGES IN
CONDITIONS OF EMPLOYMENT WITHOUT FIRST NOTIFYING AFGE AND AFFORDING AFGE
REASONABLE TIME TO PRESENT ITS VIEWS AND RECOMMENDATIONS PURSUANT TO ITS
PREVIOUSLY GRANTED NATIONAL CONSULTATION RIGHTS, AS REQUIRED BY SECTION
7113 OF THE STATUTE. /2/ THUS THIS CASE INVOLVES ONLY THE APPLICATION
OF SECTION 7113 OF THE STATUTE WHICH DEALS WITH NATIONAL CONSULTATION
RIGHTS AND DOES NOT INVOLVE THE APPLICATION OF SECTION 7117(D) DEALING
WITH CONSULTATION RIGHTS WITH RESPECT TO GOVERNMENT-WIDE RULES OR
REGULATIONS. /3/
AS A PRELIMINARY MATTER, THE GENERAL COUNSEL HAS MOVED TO STRIKE
PORTIONS OF GSA'S BRIEF ON THE GROUND THAT THE BRIEF CONTAINS FACTUAL
MATERIAL NOT INCLUDED IN THE STIPULATION OF FACTS; IN THE ALTERNATIVE,
THE GENERAL COUNSEL REQUESTS AN OPPORTUNITY TO REBUT THOSE FACTS. IN
THIS REGARD, IN ANY MATTER SUBMITTED DIRECTLY TO AND ACCEPTED BY THE
AUTHORITY FOR DECISION BASED UPON A STIPULATION OF FACTS, THE AUTHORITY
WILL CONSIDER ONLY FACTS CONTAINED IN THE STIPULATION. ACCORDINGLY, THE
GENERAL COUNSEL'S MOTION IS DENIED. /4/
THE STIPULATED FACTS ARE AS FOLLOWS: AT ALL TIMES MATERIAL HEREIN,
AFGE HAS BEEN GRANTED NATIONAL CONSULTATION RIGHTS BY GSA UNDER SECTION
7113(A) OF THE STATUTE. ON AUGUST 13, 1979, THE OFFICE OF MANAGEMENT
AND BUDGET (OMB) ISSUED CIRCULAR NO. A-118 WHICH ESTABLISHED A
GOVERNMENT-WIDE PAID PARKING PROGRAM FOR FEDERAL EMPLOYEES AND DIRECTED
GSA TO DEVELOP REGULATIONS FOR THIS PROGRAM. ON SEPTEMBER 6, 1979, GSA
ISSUED FPMR TEMPORARY REGULATION D-65 WHICH PRESCRIBED PROCEDURES FOR
THE ASSIGNMENT OF PARKING SPACES AND THE ASSESSMENT OF FEES. THIS
TEMPORARY REGULATION WAS PUBLISHED IN THE FEDERAL REGISTER ON SEPTEMBER
13. ALSO ON SEPTEMBER 13, GSA SENT A MEMORANDUM WITH AN ATTACHED COPY
OF THE TEMPORARY REGULATION TO THE FOLLOWING GSA OFFICIALS: REGIONAL
ADMINISTRATORS; REGIONAL PUBLIC BUILDINGS COMMISSIONERS; AND REGIONAL
DIRECTORS, SPACE MANAGEMENT DIVISION. ON OCTOBER 16, A MEMORANDUM WAS
SENT BY GSA TO ITS REGIONAL ADMINISTRATORS CONCERNING THE FORMAT
REQUIRED BY OMB TO BE USED IN REPORTING PAID PARKING BY EMPLOYEES. ON
OCTOBER 23, A MEMORANDUM WAS SENT BY GSA TO GSA OFFICIALS DIRECTING THE
IMPLEMENTATION OF THE PARKING PROGRAM AS IT RELATED TO GSA EMPLOYEES.
INCLUDED IN THIS MEMORANDUM WERE INSTRUCTIONS TO THE REGIONAL
ADMINISTRATIVE SERVICES DIVISION TO DEVELOP AND MAINTAIN AN UP-TO-DATE
CERTIFIED INVENTORY OF AVAILABLE GSA PARKING SPACES, AND DIRECTIONS TO
THE APPROPRIATE DIVISION OF EACH GSA FACILITY TO COLLECT AND TRANSMIT
THE PARKING FEES WITH A NOTATION SHOWING THE NUMBER OF SPACES FOR WHICH
A FEE WAS COLLECTED AND THE TOTAL AMOUNT COLLECTED OR DELINQUENT. THE
OCTOBER 23 MEMORANDUM ALSO SET FORTH A PUNITIVE DELINQUENCY POLICY AND
PROVIDED THAT PRORATED REFUNDS WOULD BE MADE IF AN EMPLOYEE'S SPACE WAS
REASSIGNED FOR OFFICIAL USE.
ON OR ABOUT OCTOBER 23, GSA GRANTED AFGE CONSULTATION RIGHTS WITH
RESPECT TO GOVERNMENT-WIDE REGULATIONS. ON OCTOBER 24, A MEETING WAS
HELD BETWEEN AFGE AND GSA PURSUANT TO AFGE'S CONSULTATION RIGHTS WITH
RESPECT TO GOVERNMENT-WIDE REGULATIONS. AT THE CLOSE OF THAT MEETING,
AFGE REQUESTED INFORMATION CONCERNING THE EXISTENCE OF INTERNAL AGENCY
REGULATIONS SUPPLEMENTING OR IMPLEMENTING THE GOVERNMENT-WIDE PAID
PARKING POLICY. ALTHOUGH THE GSA OFFICIAL PRESENT AT THE MEETING STATED
THAT HE HAD NO KNOWLEDGE OF SUCH REGULATIONS, HE OFFERED AT THAT TIME TO
OBTAIN AND HAND OVER TO AFGE A COPY OF THE OCTOBER 23 MEMORANDUM; WHEN
AFGE STATED THAT IT COULD NOT WAIT, GSA AGREED TO MAIL A COPY TO AFGE.
A COPY WAS MAILED ON OCTOBER 26 AND RECEIVED ON OCTOBER 30. AT NO TIME
DID GSA RECEIVE COMMENTS ON THAT MEMORANDUM FROM AFGE. THE PAID PARKING
PROGRAM WAS IMPLEMENTED ON NOVEMBER 1, 1979.
AT THE OUTSET OF THE AUTHORITY'S DISCUSSION OF THE LEGAL QUESTIONS
PRESENTED HEREIN, AS HAS BEEN PREVIOUSLY NOTED, THIS CASE INVOLVES A
COMPLAINT WHICH ALLEGES THAT GSA VIOLATED SECTION 7116(A)(1) AND (5) OF
THE STATUTE BY INSTITUTING SUBSTANTIVE CHANGES IN CONDITIONS OF
EMPLOYMENT WITHOUT FIRST NOTIFYING AFGE AND AFFORDING AFGE REASONABLE
TIME TO PRESENT ITS VIEWS AND RECOMMENDATIONS PURSUANT TO ITS PREVIOUSLY
GRANTED NATIONAL CONSULTATION RIGHTS, AS REQUIRED BY SECTION 7113 OF THE
STATUTE. SECTION 7113(A)(1) PROVIDES THAT THERE IS NO EXCLUSIVE
RECOGNITION ON AN AGENCY-WIDE BASIS, AN AGENCY MUST GRANT NATIONAL
CONSULTATION RIGHTS TO A LABOR ORGANIZATION WHICH EXCLUSIVELY REPRESENTS
"A SUBSTANTIAL NUMBER" OF THE AGENCY'S EMPLOYEES UNDER CRITERIA
PRESCRIBED BY THE AUTHORITY. AS HAS BEEN PREVIOUSLY NOTED, AT ALL TIMES
MATERIAL GSA HAS GRANTED SUCH RIGHTS TO AFGE PURSUANT TO SECTION 7113(A)
OF THE STATUTE. ANY LABOR ORGANIZATION HAVING NATIONAL CONSULTATION
RIGHTS IS ENTITLED TO RECEIVE ADVANCE NOTICE OF ANY SUBSTANTIVE CHANGES
IN CONDITIONS OF EMPLOYMENT PROPOSED BY THE AGENCY AND TO BE GIVEN A
REASONABLE PERIOD OF TIME TO PRESENT ITS VIEWS AND RECOMMENDATIONS
REGARDING THE CHANGES. IF SUCH VIEWS AND RECOMMENDATIONS ARE PRESENTED,
THEY MUST BE CONSIDERED BY THE AGENCY BEFORE IT TAKES FINAL ACTION.
WITH THIS IN MIND, THE THREE MEMORANDA WHICH FORM THE BASIS OF THE
COMPLAINT MAY BE ANALYZED AS FOLLOWS: THE MEMORANDUM THAT WAS SENT TO
GSA OFFICIALS ON SEPTEMBER 13 AND TO AFGE ON SEPTEMBER 19 CONTAINED,
WITHOUT CHANGE, A COPY OF THE TEMPORARY REGULATION WHICH WAS DEVELOPED
PURSUANT TO THE OMB DIRECTIVE (CIRCULAR NO. A-118) AND PUBLISHED IN THE
FEDERAL REGISTER. SINCE GSA, THE RESPONDENT AGENCY HEREIN, NEITHER
INITIATED NOR PROPOSED THE TEMPORARY REGULATION, IT HAD NO SECTION 7113
OBLIGATION TO NOTIFY AFGE PURSUANT TO AFGE'S NATIONAL CONSULTATION
RIGHTS.
THE OCTOBER 16 MEMORANDUM SET FORTH A FORMAT, REQUIRED BY OMB, TO BE
USED BY GSA MANAGEMENT IN REPORTING THE NUMBER OF PARKING SPACES
AVAILABLE AT EACH FACILITY AND THEIR ANTICIPATED REVENUE. IN OTHER
WORDS, THIS MEMORANDUM CONCERNED ADMINISTRATIVE MANDATES OF OMB AND NOT
PROPOSED SUBSTANTIVE CHANGES BY GSA IN CONDITIONS OF EMPLOYMENT. THUS,
AFGE'S NATIONAL CONSULTATION RIGHTS DO NOT APPLY WITH REGARD TO THE
OCTOBER 16 MEMORANDUM.
THE AGENCY-WIDE MEMORANDUM OF OCTOBER 23, ON THE OTHER HAND,
CONTAINED FINAL INSTRUCTIONS BY GSA TO ITS ADMINISTRATORS REGARDING PAID
PARKING BY GSA EMPLOYEES. SPECIFICALLY, THIS MEMORANDUM SET FORTH
GUIDELINES AND PROCEDURES RELATING TO PAID PARKING BY EMPLOYEES OF GSA
INCLUDING PROVISIONS REGARDING THE MANNER IN WHICH FEES WOULD BE
COLLECTED AS WELL AS CONCERNING REFUNDS AND DELINQUENCY WHICH HAD BEEN
DERIVED FROM PRE-EXISTING GSA REGULATIONS. CLEARLY, THEN, THIS
MEMORANDUM DEALT WITH FINAL, DISCRETIONARY CHANGES BY GSA IN SUBSTANTIVE
CONDITIONS OF EMPLOYMENT OF GSA EMPLOYEES. SINCE AFGE HAD NATIONAL
CONSULTATION RIGHTS, GSA WAS OBLIGATED TO COMPLY WITH THE PROVISIONS OF
SECTION 7113(B)(1) PRIOR TO FINALIZING THOSE CHANGES. THUS, GSA WAS
REQUIRED TO NOTIFY AFGE AND PROVIDE AFGE WITH THE OPPORTUNITY TO PRESENT
ITS VIEWS AND RECOMMENDATIONS PRIOR TO OCTOBER 23, WHEN "PROPOSED"
CHANGES WERE TRANSLATED BY MEMORANDUM IN FINAL ACTION. THIS IT DID NOT
DO. NEITHER GSA'S OCTOBER 24 OFFER TO HAND OVER TO AFGE A COPY OF THE
OCTOBER 23 MEMORANDUM NOR GSA'S MAILING OF THAT MEMORANDUM TO AFGE ON
OCTOBER 26 CAN LEAD TO A CONCLUSION THAT GSA COMPLIED WITH ITS STATUTORY
OBLIGATION ALL THAT CAN BE CONCLUDED FROM THESE ACTS IS THAT GSA WAS
BELATEDLY NOTIFYING AFGE OF A FAIT ACCOMPLI. THEREFORE, IN THIS REGARD
THE AUTHORITY CONCLUDES THAT GSA FAILED TO COMPLY WITH ITS OBLIGATION TO
CONSULT UNDER SECTION 7113(B)(1) AND THUS THAT GSA VIOLATED SECTION
7116(A)(1) AND (5) OF THE STATUTE.
ACCORDINGLY, WE SHALL ORDER THAT GSA CEASE AND DESIST FROM FAILING TO
INFORM AFGE OF PROPOSED SUBSTANTIVE CHANGES IN CONDITIONS OF EMPLOYMENT;
FAILING TO PROVIDE AFGE WITH REASONABLE TIME TO PRESENT ITS VIEWS AND
RECOMMENDATIONS CONCERNING SUCH PROPOSED CHANGES; AND ENGAGING IN ANY
LIKE OR RELATED CONDUCT. WE SHALL FURTHER ORDER THAT GSA, IN ADDITION
TO COMPLYING WITH THE USUAL POSTING AND NOTIFICATION REQUIREMENTS,
PROVIDE AFGE REASONABLE TIME TO PRESENT ITS VIEWS AND RECOMMENDATIONS
REGARDING PROCEDURES WITH RESPECT TO REFUND, DELINQUENCY AND OTHER
POLICIES AFFECTING CONDITIONS OF EMPLOYMENT USED IN IMPLEMENTING THE
PAID PARKING PROGRAM FOR GSA EMPLOYEES, AND THEREAFTER COMPLY WITH THE
REQUIREMENTS OF SECTION 7113(B)(2) OF THE STATUTE.
AFGE HAD REQUESTED AS A REMEDY THAT GSA WITHDRAW ALL REGULATIONS
RELATING TO PAID PARKING FOR FEDERAL EMPLOYEES, ROLL BACK ALL ACTIONS
PRIOR TO THE NOVEMBER 1, 1979 IMPLEMENTATION DATE, AND REFUND ALL MONIES
COLLECTED. AS PREVIOUSLY INDICATED, OF THE THREE MEMORANDA AT ISSUE IN
THE INSTANT CASE, GSA WAS REQUIRED TO NOTIFY AFGE AND PROVIDE AFGE AN
OPPORTUNITY TO PRESENT VIEWS AND RECOMMENDATIONS PRIOR TO FINAL ACTION
ONLY WITH RESPECT TO THE AGENCY-WIDE MEMORANDUM OF OCTOBER 23. IN THE
PARTICULAR CIRCUMSTANCES OF THIS CASE, INCLUDING THE FACT THAT THE
OCTOBER 23 MEMORANDUM OF GSA WAS DESIGNED TO CARRY OUT OMB CIRCULAR NO.
A-118 AND FPMR TEMPORARY REGULATION D-65, AS WELL AS THE FACT THAT THERE
WAS IN THIS CASE INVOLVING NATIONAL CONSULTATION RIGHTS, NO OBLIGATION
TO NEGOTIATE AND IN VIEW OF THE PENDING LITIGATION BEFORE THE COURTS
RELATING TO THE VALIDITY OF THE ENTIRE PAID PARKING PLAN, /5/ WE BELIEVE
THAT A STATUS QUO ANTE REMEDY WOULD BE INAPPROPRIATE.
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE GENERAL SERVICES ADMINISTRATION SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO INFORM THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE), PURSUANT TO AFGE'S NATIONAL CONSULTATION
RIGHTS UNDER SECTION 7113 OF THE STATUTE, OF PROPOSED SUBSTANTIVE
CHANGES IN CONDITIONS OF EMPLOYMENT AND FAILING TO PROVIDE AFGE WITH
REASONABLE TIME TO PRESENT ITS VIEWS AND RECOMMENDATIONS REGARDING THE
PROPOSED CHANGES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER SECTION 7113 OF THE
STATUTE AND TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, REASONABLE
TIME TO PRESENT ITS VIEWS AND RECOMMENDATIONS CONCERNING PROCEDURES
PERTAINING TO REFUND AND DELINQUENCY AND OTHER POLICIES AFFECTING
CONDITIONS OF EMPLOYMENT USED IN IMPLEMENTING THE PAID PARKING PROGRAM
FOR EMPLOYEES OF THE GENERAL SERVICES ADMINISTRATION, AND THEREAFTER
COMPLY WITH THE REQUIREMENTS OF SECTION 7113(B)(2) OF THE STATUTE.
(B) POST AT EACH OF ITS REGIONAL OFFICES IN THE UNITED STATES COPIES
OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY
THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION AND SHALL BE
POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED.
REASONABLE STEPS SHALL BE TAKEN BY THE GENERAL SERVICES
ADMINISTRATION TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION 3, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS OF THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THIS ORDER.
ISSUED, WASHINGTON, D.C., AUGUST 19, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL TO INFORM THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE), PURSUANT TO AFGE'S NATIONAL CONSULTATION
RIGHTS UNDER SECTION 7113 OF THE STATUTE, OF PROPOSED SUBSTANTIVE
CHANGES IN CONDITIONS OF EMPLOYMENT OR FAIL TO PROVIDE AFGE WITH
REASONABLE TIME TO PRESENT ITS VIEWS AND RECOMMENDATIONS REGARDING THE
PROPOSED CHANGES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL PROVIDE THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER SECTION 7113
OF THE STATUTE AND TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
REASONABLE TIME TO PRESENT ITS VIEWS AND RECOMMENDATIONS CONCERNING
PROCEDURES PERTAINING TO REFUND AND DELINQUENCY AND OTHER POLICIES
AFFECTING CONDITIONS OF EMPLOYMENT USED IN IMPLEMENTING THE PAID PARKING
PROGRAM FOR OUR EMPLOYEES, AND WE WILL THEREAFTER COMPLY WITH THE
REQUIREMENTS OF SECTION 7113(B)(2) OF THE STATUTE.
(AGENCY OR ACTIVITY)
DATED: BY:
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, REGION 3, FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: 1133 15TH ST., NW., SUITE 300, WASHINGTON, D.C.
20005, AND WHOSE TELEPHONE NUMBER IS: (202) 653-8452.
--------------- FOOTNOTES: ---------------
/1/ SECTION 7116(A)(1) AND (5) PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER(.)
/2/ SECTION 7113 PROVIDES IN PERTINENT PART:
SEC. 7113. NATIONAL CONSULTATION RIGHTS
(A)(1) IF, IN CONNECTION WITH ANY AGENCY, NO LABOR ORGANIZATION HAS
BEEN ACCORDED EXCLUSIVE
RECOGNITION ON AN AGENCY BASIS, A LABOR ORGANIZATION WHICH IS THE
EXCLUSIVE REPRESENTATIVE OF
A SUBSTANTIAL NUMBER OF THE EMPLOYEES OF THE AGENCY, AS DETERMINED IN
ACCORDANCE WITH CRITERIA
PRESCRIBED BY THE AUTHORITY, SHALL BE GRANTED NATIONAL CONSULTATION
RIGHTS BY THE
AGENCY. NATIONAL CONSULTATION RIGHTS SHALL TERMINATE WHEN THE LABOR
ORGANIZATION NO LONGER
MEETS THE CRITERIA PRESCRIBED BY THE AUTHORITY. ANY ISSUE RELATING
TO ANY LABOR
ORGANIZATION'S ELIGIBILITY FOR, OR CONTINUATION OF, NATIONAL
CONSULTATION RIGHTS SHALL BE
SUBJECT TO DETERMINATION BY THE AUTHORITY.
(B)(1) ANY LABOR ORGANIZATION HAVING NATIONAL CONSULTATION RIGHTS IN
CONNECTION WITH ANY
AGENCY UNDER SUBSECTION (A) OF THIS SECTION SHALL--
(A) BE INFORMED OF ANY SUBSTANTIVE CHANGE IN CONDITIONS OF EMPLOYMENT
PROPOSED BY THE
AGENCY, AND
(B) BE PERMITTED REASONABLE TIME TO PRESENT ITS VIEWS AND
RECOMMENDATIONS REGARDING THE
CHANGES.
(2) IF ANY VIEWS OR RECOMMENDATIONS ARE PRESENTED UNDER PARAGRAPH (1)
OF THIS SUBSECTION TO
AN AGENCY BY ANY LABOR ORGANIZATION--
(A) THE AGENCY SHALL CONSIDER THE VIEWS OR RECOMMENDATIONS BEFORE
TAKING FINAL ACTION ON
ANY MATTER WITH RESPECT TO WHICH THE VIEWS OR RECOMMENDATIONS ARE
PRESENTED; AND
(B) THE AGENCY SHALL PROVIDE THE LABOR ORGANIZATION A WRITTEN
STATEMENT OF THE REASONS FOR
TAKING THE FINAL ACTION.
/3/ SECTION 7117(D) PROVIDES:
(D)(1) A LABOR ORGANIZATION WHICH IS THE EXCLUSIVE REPRESENTATIVE OF
A SUBSTANTIAL NUMBER
OF EMPLOYEES, DETERMINED IN ACCORDANCE WITH CRITERIA PRESCRIBED BY
THE AUTHORITY, SHALL BE
GRANTED CONSULTATION RIGHTS BY ANY AGENCY WITH RESPECT TO ANY
GOVERNMENT-WIDE RULE OR
REGULATION ISSUED BY THE AGENCY EFFECTING ANY SUBSTANTIVE CHANGE IN
ANY CONDITION OF
EMPLOYMENT. SUCH CONSULTATION RIGHTS SHALL TERMINATE WHEN THE LABOR
ORGANIZATION NO LONGER
MEETS THE CRITERIA PRESCRIBED BY THE AUTHORITY. ANY ISSUE RELATING
TO A LABOR ORGANIZATION'S
ELIGIBILITY FOR, OR CONTINUATION OF, SUCH CONSULTATION RIGHTS SHALL
BE SUBJECT TO
DETERMINATION BY THE AUTHORITY.
(2) A LABOR ORGANIZATION HAVING CONSULTATION RIGHTS UNDER PARAGRAPH
(1) OF THIS SUBSECTION
SHALL--
(A) BE INFORMED OF ANY SUBSTANTIVE CHANGE IN CONDITIONS OF EMPLOYMENT
PROPOSED BY THE
AGENCY, AND
(B) SHALL BE PERMITTED REASONABLE TIME TO PRESENT ITS VIEWS AND
RECOMMENDATIONS REGARDING
THE CHANGES.
(3) IF ANY VIEWS OR RECOMMENDATIONS ARE PRESENTED UNDER PARAGRAPH (2)
OF THIS SUBSECTION TO
AN AGENCY BY ANY LABOR ORGANIZATION--
(A) THE AGENCY SHALL CONSIDER THE VIEWS OR RECOMMENDATIONS BEFORE
TAKING FINAL ACTION ON
ANY MATTER WITH RESPECT TO WHICH THE VIEWS OR RECOMMENDATIONS ARE
PRESENTED; AND
(B) THE AGENCY SHALL PROVIDE THE LABOR ORGANIZATION A WRITTEN
STATEMENT OF THE REASONS FOR
TAKING THE FINAL ACTION.
/4/ THE GENERAL COUNSEL'S MOTION ALSO ASKED THE AUTHORITY TO STRIKE
FROM GSA'S BRIEF ANY REFERENCE TO CHARGES PREVIOUSLY FILED WITH THE
AUTHORITY SINCE THE STIPULATED FACTS DO NOT INCLUDE A REFERENCE TO SUCH
CHARGES. HOWEVER, WHEN IT CHOOSES TO DO SO, THE AUTHORITY MAY TAKE
ADMINISTRATIVE NOTICE OF PRIOR PROCEEDINGS CONDUCTED UNDER ITS AUSPICES.
THE AUTHORITY HAS NOT CHOSEN TO DO SO IN THE INSTANT CASE.
/5/ AFGE V. FREEMAN, 510 F.SUPP. 596 (D.D.C. 1981), APPEAL DOCKETED,
NO. 81-1244 (D.C. CIR. MARCH 19, 1981).